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Justice Antonin Scalia died today. It is a profound loss to the Court, the nation, and to the study of law. Everyone should mourn his loss, no matter which side of the political spectrum they are on.

Yet, due to Scalia’s divisiveness, there will no doubt be many uncouth tweets, posts, and op-eds in the coming days from those who disagreed with him more often than not. While there are other justices on the “conservative” side of the Court, Scalia’s pugnacious and often vituperative opinions have a way of either getting under your skin (if you disagree) or making you triumphantly raise your fist in the air (if you agree). In my opinion, Scalia was not only finest writer ever to sit on the Court, he was one of the best rhetoricians in history.

In the coming days, we will see many reactions from across the political spectrum. I predict, and hope, that many of Scalia’s ideological opponents will give the man the respect he deserved. And perhaps that, more than anything, will be the testament to his enduring legacy. By any objective measure, Scalia is among the greatest justices in our history. With his penetrating logic and his colorful wit, Scalia was the most forceful and visible advocate for originalism, a theory of constitutional interpretation that was derided when he ascended to the bench and is now, for both liberals and conservatives, mainstream.

During law school, many of my classmates would comment on their intense dislike for Scalia. I always responded by pointing out how many opinions he had published in our textbooks. Those opinions weren’t just in there because they were comparatively fun to read, which is true, but because a Scalia opinion has a way of clarifying the legal questions at issue. They are perfect pedagogical devices.

As Chris Preble notes, one virtue of Hagel becoming secretary is that he is willing to cut the massive defense budget and is more skeptical than most Washington bigwigs about war. He has a tendency to offer sensible observations that count as apostasy in U.S. foreign policy circles. Examples include his claim that the U.S. trade embargo toward Cuba is senseless (a view shared by most people outside Miami, which brought Rubio’s hold threat), the notion that diplomatic engagement with odious regimes is generally worthwhile, doubts about the utility of coercive sanctions on Iran (which academics that study the matter mostly share), and, of course, his willingness to admit the existence of an Israeli lobby (granted, he shouldn’t have said “jewish”) and a distinction between U.S. and Israeli interests.

As Hagel’s more reasonable critics note, having never served on a defense committee, his qualifications are not ideal. Serving in Vietnam does not teach you much about how to run the Pentagon. But Hagel’s military experience does seem to have encouraged his skepticism about the wisdom of generals and admirals—a useful tendency for a Secretary of Defense, especially one that may have to overcome the brass’s resistance to ending a war and implementing a drawdown. Deputies like Ashton Carter can help with management.

Another virtue of Hagel’s nomination is that it may show that the interests that police speech on these issues are not as powerful as they seem. As nearly everyone reading this knows, the most vocal opponents of Hagel’s nomination are the familiarband of neoconservatives ever-eager for war, the editorialists that reliably agree with them, and some pro-Israel (really Likunik) lobbying groups. Also opposed to Hagel are some gay-rights advocates angered by his voting record on that issue, including his 1998 comment calling an ambassadorial nominee “openly, aggressively gay,” for which he recently apologized.

If Hagel loses in the Senate, many will say that the Israeli lobby and their neoconservative friends did it. His loss, you might say, will enhance their perceived power and quiet those tempted to challenge the ideology they enforce. But since Obama floated his name and brought attacks, not nominating him would have had the same result. So why not now have a fight?

There may be some political benefit even in losing. Neoconservative attacks on Hagel come largely on matters where the public takes Hagel’s side—the military budget, bombing Iran, the occupation of Iraq, the wisdom of intervention in Syria. If Senators like McCain, Graham, and Kelly Ayotte (of the lately anti-war New Hampshire) attack Hagel on these grounds, they may harm themselves and their cause. Floor debate might allow a senator to ask Dan Coats how being anti-war means disrespecting the military. Even on Israel, there may be virtue in exposing a wider public to the irony of the Israeli lobby intimating people by attacking someone for saying the Israeli lobby intimidates people.

If Hagel wins, it will demonstrate that his opponents aren’t all they are cracked up to be. Neoconservatives obviously lose regularly; various wars they said our security depends on never occurred, and those that did were generally smaller than they’d like. The Israel lobby, on the other hand, seems more successful. But they regularly win because there is rarely anyone strong pushing back—no Palestinian lobby, for example. Americans are so safe from Middle-Eastern trouble that, most of the time, few costs—blood, treasure, votes—come from doing whatever those most interested want. When their ambitions bring conflict with something powerful, like a lobby of similar heft, strongly anti-war sentiment, or a determined president just reelected, the other side can win.

I argued that Susan Rice was a bad choice for secretary of state because she is unfailingly pro-war, and that her ascension would show, again, that being pro-war is generally politically safer than being against it. In terms of perception, Hagel is now nearly the opposite. If he became secretary it would indicate that it’s not verboten for ambitious politicos to be realists that question the virtue of violent meddling in the Middle East and supportive of substantial military cuts. A few less people might bite their tongue for fear that someday the likes of Abe Foxman, Bill Kristol, and theirPRflaks will call them anti-semites and keep them from getting an important job. One appointment may not unleash the perestroika needed to undermine the hawkish consensus that prevails on these issues, but it would help.

By nominating Chuck Hagel to be the next secretary of defense, after an excruciatingly long period of uncertainty and speculation, President Obama has demonstrated that he is disinclined to follow the advice of the neoconservatives who have been his harshest critics. Bill Kristol’s aggressive campaign to dissuade Obama from picking Hagel failed. Now the attention turns to a fight over his confirmation in the Senate. In the end, I believe he will be confirmed.

After all, such fights are rare. Presidents are generally granted wide latitude in picking members of their cabinet, and it is unlikely that many of the 55 Senators who caucus with the Democrats (including independents Bernie Sanders of Vermont and Angus King of Maine) will pick a fight with a just-re-elected Democratic president. Such a fight would erode Obama’s political capital, capital that he will need to push through his—and their—domestic agenda.

The remaining unknown, therefore, is whether the neoconservatives’ grip over the Republican Party has finally been broken. Kristol and the neocons will argue that Hagel should not be confirmed. Will Republicans, aside from the predictablevoices in the Senate’s interventionistcaucus, listen?

It is remarkable that the party continues to consult with the same people who championed the wars that have so tarnished the GOP’s once stellar brand. But consider the case against Hagel on its merits. Hagel is not a pacifist, and certainly not the dove that his critics have claimed he is. He remains firmly within the foreign policy mainstream in Washington, and has supported past wars that I have opposed. But his general inclination, hardened after the debacle of Iraq, is to avoid foreign crusades, and to resist pressure to send U.S. troops into harm’s way in pursuit of unclear objectives that do not advance U.S. interests. That is a mindset that the neoconservatives cannot abide.

But there are broader principles at play, including traditional deference to a president’s wishes with respect to nominees, a deference that is warranted when the person only serves at the discretion of the president (unlike, for example, judges who serve for life). Even conservative commentators who have questions about some of Hagel’s views, including George Will, have signaled that Hagel should be confirmed. Other respected foreign policy hands who came out in favor of Hagel before the nomination was announced include: Brent Scowcroft and Anthony Zinni (and nine other retired senior military officers), nine former ambassadors, including Nicholas Burns, Ryan Crocker Daniel Kurtzer, and Thomas Pickering. In a separate op-ed in the Wall Street Journal, Crocker reaffirmed the group’s support for the Hagel nomination, praising Hagel “as a person of integrity, courage and wisdom.” The neocons, therefore, by picking a fight over Hagel, have also taken on a distinguished roster of foreign policy experts. Republican senators wishing to put distance between the party and the neocons should be happy to confirm a nominee who shares their views on most issues, and who is supported by people who have not been so badly wrong, so often.

I don’t believe that Barack Obama chose Chuck Hagel in order to humiliate the Republican Party. I don’t think he intended to shine the light on the bitter divide between the neoconservatives and traditional foreign policy realists. I think he picked Hagel because he likes him, and trusts him. But I agree with an anonymous Obama administration official about what the Hagel fight could mean for the GOP (via BuzzFeed): “If the Republicans are going to look at Chuck Hagel, a decorated war hero and Republican who served two terms in the Senate, and vote no because he bucked the party line on Iraq, then they are so far in the wilderness that they’ll never get out.”

Chuck Hagel favors a much more ambitious American role in the world than I do. To answer one of the more ridiculous questions posed during the pre-nomination controversy (and that is saying something), he is not a pacifist. He is, however, a sensible, cautious person who has fought and bled for his country. And he is an independent thinker who is not cowed by Beltway politesse as so many in this town are.

The reason people should care about his nomination is fairly simple. Hagel successfully running the DC gauntlet could be a perestroika moment in the American foreign and defense policy debate, and possibly even loosen the neoconservative stranglehold on the GOP. That’s something worth caring about.

There’s a certain sense that this whole debate is about neocons vs. people who disagree with neocons, and to be frank, there’s something to that. But it’s not about settling old scores or schadenfreude. It’s about slightly reshaping the American foreign policy establishment.

Take Bill Kristol. The “Hagel hates Jews” nonsense owes everything to Kristol. In case it still needs to be said, Hagel is not an anti-Semite. There are too many testaments to this reality to point to (including notable reality-checks from David Brooks and Bush the Younger’s Pentagon comptroller Dov Zakheim), and the entire effort to brand him as America’s Ahmadinejad should not have been considered even for a moment.

But this sort of nonsense is Kristol’s stock and trade, at least on foreign policy issues. On December 19, he announced in a podcast that the reason Hagel should be opposed is that he is “a bitter enemy of Israel.” In the intervening weeks, he quarterbacked a monomaniacal campaign of yellow journalism and innuendo against a candidate who, by the rules of tradition and decorum, could not answer the slurs directly.

By January 4, Kristol was patting himself on the back, praising the “substantive” campaign waged by his merry band of bloggers against Hagel, but once again deploying the nonsense about Hagel harboring an “unpleasant distaste for Israel and Jews.”

Unfortunately, people like Kristol hold outsized sway over wonky, inside baseball decisions like the Hagel nomination—decisions that are influenced almost entirely by elites, without input from voters. So the neocon modus operandi isn’t to win elections with neoconservative candidates, but rather to shape the contours of the conventional wisdom in Washington such that people who don’t have passionate views about defense spending or the Middle East at least confront a severely circumscribed range of acceptable opinion from which to choose.

If Hagel survives this process, it will show that you can stare down the neocons and live to tell the tale. And if the Hagel nomination can demonstrate that you don’t need to fear Bill Kristol, the country and our foreign policy will be better off for it.

Obama’s recent nomination of Jeremy Stein and Jerome Powell to the Board of Governors of the Federal Reserve System raises an important question: How should the Senate treat nominations whose terms are likely to run beyond the term of the current president? If confirmed, Stein could serve until 2018 and Powell until 2014. Of course this pales in comparison to current governor Janet Yellen, whose term runs until 2024. With or without Stein and Powell, Obama nominations will have control of the Federal Reserve for years to come.

The long terms of Federal Reserve governors are meant to insulate them from political pressure. But that’s after they’ve been confirmed. This structure tells us little about how to handle such appointments during their nomination phase.

In the absence of strong policy or theoretical rationales, we often look to precedent. In this case we have at least one. In December of 2007, almost a year before the November 2008 election, then Senate Banking Committee chair Chris Dodd (D-CT) said, in relation to the nomination of Randall Kroszner to the Federal Reserve, “We’re frankly getting down to less than a year away from the election. On nominations of that length, I’m fairly reluctant.” Senator Dodd acted (or rather failed to act) on that reluctance, and blocked the nomination of Professor Kroszner. His nomination was not an exception, as the nominations of Larry Klane to the Federal Reserve and a couple of nominations to the Securities Investor Protection Corporation were also blocked, for apparently this same reason. Dodd also delayed nominations to the President’s Council of Economic Advisers, although those positions would have ended with the term of President Bush. Also worth noting is that these important economic policy positions were being blocked in the middle of a recession and financial crisis, when one would think you need “all hands on deck.”

Is this “Dodd rule” the correct position? It’s hard to know. I can say I didn’t think it was appropriate at the time. And I am usually not one to believe that “two wrongs make a right.” The correct solution, in my view, would be to have the Senate decide upon the appropriate length of time before a presidential election that it will no longer consider nominations that run beyond the president’s term and incorporate that decision into the Senate rules. Until then operating under the “Dodd Rule” strikes me as fair enough.

You might have heard of Peter Diamond, he recently won the Nobel Prize in Economics and earlier this week withdrew his nomination to the Federal Reserve Board. But maybe you have not heard of Paul Pate.

Mr. Pate, former Republican mayor of Cedar Rapids, Iowa was nominated by President Bush in 2003 to fill a seat on the board of the National Institute of Building Sciences. I remember it well, as I handled that nomination as staff for the Senate Banking Committee.

So what exactly do Mr. Diamond and Mr. Pate have in common? They were both nominated for positions they could not legally hold. I’ve written elsewhere about Mr. Diamond’s situation. Mr. Pate was barred from serving on the NIBS board due to an ownership interest he had in an asphalt company.

Bush’s Office of Presidential Personnel didn’t catch that problem because they, like Obama’s same Office, don’t appear to actually read the statutory qualifications for nominations. I will admit, I didn’t catch this problem either. It was brought to my attention by the staff of former senator Paul Sarbanes (D-MD). When I verified Sarbanes’s objection, we immediately told Mr. Pate and the Bush White House that then Committee Chair Richard Shelby would not move Mr. Pate’s nomination (despite Mr. Pate’s personal friendship with Sen. Grassley (R-IA)).

Both Mr. Diamond and Mr. Pate were, in part, the victim of circumstances beyond their control. They had done nothing wrong. Yet the law was the law. While I don’t equate NIBS with the Fed, that shouldn’t matter. We should respect the law regardless of the viewed relative importance of the position. In fact, I believe the more important the position, the greater need for respecting the law.

Unfortunately there is a lot Mr. Diamond and Mr. Pate do not have in common. Rather than accept his bad luck, Mr. Diamond offers in the New York Times the rant of a spoiled brat. Mr. Pate, in contrast, accepted his bad luck with integrity and grace.

With no hard news to report and the Supreme Court not in session — they’ll release opinions in the remaining cases on successive Mondays (plus the Tuesday after Memorial Day) beginning May 18 — Washington is abuzz with speculation over potential high court nominees. While Senator Orrin Hatch earlier this week said he expected an announcement this week, the White House is far more likely to take its time vetting candidates, with no real pressure to announce a pick until the Court recesses at the end of June.

Nobody other than the president himself really knows who’s favored, but ABC News’s Jan Crawford Greenburg — who will be contributing to this year’s Cato Supreme Court Review and speaking at our Constitution Day conference September 17 — has some fascinating scuttlebutt:

No clear favorite has emerged, but the pick has prompted an internal struggle between legal and political officials within the administration, sources say.

Political officials like Chief of Staff Rahm Emanuel are favoring Sotomayor, who would be an historic pick as the Court’s first Hispanic justice.

Obama, the thinking goes, could score huge points with Hispanics, an important and increasingly powerful constituency, by nominating Sotomayor or another Latino. Sotomayor has a compelling life story, moving from the projects to the nation’s most elite educational institutions and then onto the federal bench.

But Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer — something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee, sources close to the process said. Moreover, she’s also been criticized for abrasiveness — which could be problematic on the high court.

Legal officials in the Administration want Obama to tap a candidate who would be a more obvious force on the Court, bringing both intellectual prowess and a proven ability to build coalitions. They favor either Kagan or Wood — prospects who could be considered judicial rock stars capable of going toe to toe with Scalia and Roberts.

I would expect Senators Claire McCaskill (D-MO) and/or Amy Klobuchar (D-MN) also to be on the shortlist — more likely the former because she was one of Obama’s first supporters in the Senate (and whose replacement would be appointed by a Democratic governor). Senators have historically been fairly easy to confirm because of the courtesy extended to them by their erstwhile colleagues. Still, we haven’t had such a nominee — or anyone other than sitting appellate judges — in the poisonous post-Bork world, so all bets are off.

Were it not for Ricci v. DeStefano, Sotomayor would be a shoe-in on the simple formula of Princeton+Yale Law+Second Circuit+Hispanic woman. Now, and also for the reasons Jan cites, that is looking less likely. I still favor Wood because she has a proven judicial temperament, sterling qualifications in technical fields like antitrust and trade regulation, and would be no worse — and quite possibly better — than the other contenders on constitutional issues. If I were putting money on it, however, I would have to go with Kagan precisely because she was so recently vetted and confirmed (61-31, with Arlen Specter voting ”no” under Scottish law because he felt she hadn’t sufficiently answered his questions).